Reproductive Rights in India: Legal developments post the 2023 MTP Amendment

Abstract

This article dives into the evolving legal landscapes of the reproductive rights in India, with a focus on the Medical Termination of Pregnancy Amendment Act, 2021 and key legal developments after its implementation in 2023. The above article mainly focuses on the shift in the legal medical framework regarding reproductive laws in India from  the restrictive to more inclusive and rights based approaches, Specially addressing the privacy, and Rights to the Reproductive Autonomy of an individual. The article also points outs the challenges in implementation, such as access barriers and procedural delays, and suggests reforms to ensure reproductive autonomy and gender equality. A comparative lens is also adopted to align India’s approach with global standards. 

Introduction

Reproductive rights form an essential part of an individual’s autonomy, dignity and privacy. In Indian context these rights are recognized under the Article 21 of The Indian Constitution which guarantees the right to life and personal liberty. Among the various aspects of reproductive health, the right to safe and legal abortion remains the most contested and crucial element.

The journey Indian Legal System with abortion laws begins with the Medical Termination of Pregnancy Act, 1971 (MTP), this act was initially enacted with the intent to control the population growth and to avoid the unsafe abortions along with the one of the motives to prevent illegal female feticides. However, over a time the socio-legal understanding of the abortion evolved and demanded the reforms that would align more towards the right based approach rather than merely focusing on the medical or conditional framework leading to the MTP (Amendment) Act 2021, This amendment introduced some significant changes like increase in the permissible gestation period and recognizing the rights of unmarried women. The post 2023 legal landscape has witnessed the further developments, especially in the form of the judicial pronouncements that have expanded the scope of reproductive rights.

The article aims to critically examine the MTP amendment, its legal implications and evolving judicial approach in safeguarding the reproductive rights in India.

 Evolution of Abortion Laws in India

Before the enactment of the Medical Termination of Pregnancy (MTP) Act, 1971[1], abortion in India was governed by the Indian Penal Code (IPC), 1860 under sections 312 to 316 about 165 years ago, under these sections’ abortion was made a crime for which the mother as well as the abortionist could be punished except for it had to be induced to save life of the mother. Even in such life-threatening cases it carried significant procedural and moral hurdles. The punishment to both the abortionist and the mother under these sections lead to the underground and unsafe abortions. Therefore, the need of the reforms became more important during 1960s as the maternal mortality rates started increasing due to the practices of the unsafe abortions. On August 25, 1964, the Central Family Planning Board recommended to the Ministry of Health to form a committee to study the questions arising regarding the legislation on abortion. The recommendation was adopted in late 1964, and a committee was constituted, with representatives from a variety of Indian public and private agencies, The Shantilal Shah Committee[2] was appointed in 1964 to study socio-legal conditions surrounding abortion under specific medical conditions to reduce health risks and criminal liabilities, The committee issued its reports on December 30, 1966, the government decided to liberalize the abortion laws and passed the Medical Termination of Pregnancy (MTP) Act, 1971 , these reports by Shantilal Shah Committee ultimately laid the foundation for the MTP Act 1971.

 Medical Termination of Pregnancy (MTP) Act, 1971

Medical Termination of Pregnancy (MTP) Act, 1971 was passed as a health measure to protect women from the hazards of untherapeutic abortions and allowed medical practitioners to legally terminate pregnancies legally under some specific circumstances.

According to the Medical Termination of Pregnancy (MTP) Act, 1971 the pregnancy can be terminated legally under the above-mentioned conditions.

• Where the length of the pregnancy does not exceed the timeline of 20 weeks[3]
• Is the continuation of the pregnancy bringing the risk to physical or mental health of the women.[4]
• If there is a substantial risk that if the child were born, it will suffer from serious and incurable physical or mental abnormality.[5]
• If the pregnancy is a result of failure of the contraceptive methods but only within the marriage.[6]

Importantly this act shifted the framework from punishment to the medical justification, but during the period of 1990s the adoption of new legislative measures, the introduction of new technologies and growing demand for the sex selective abortion and misuse of the act by the medical practitioners dictated the loopholes in the act.

Despite of the progressive intent, the 1971 law faced major criticisms and became outdated over a time.

Major criticisms are as follows

• Limited permissible gestational period for the termination of the pregnancy (only upto 20 weeks).

This rigid gestation period does not provide scope for the termination of the pregnancy if the abnormalities in the unborn are detected late or the rape survivors reported late due to the trauma or stigma.

 Case Law – Meera Santosh Pal v. Union of India, (2017) 3 SCC 462.

 The Supreme Court allowed termination of the pregnancy at 24^th week of the pregnancy due to severe fetal anencephaly wherein the fetal bones remain unformed, stressing the need for more compassionate approach. However, such reliefs were only available through litigation showing the inadequacy of the law for real word scenarios.

• Exclusion of the unmarried women from the provisions relating to contraceptive failure.

The law permitted the abortion in cases of contraceptive failure only within the marriage i.e. The law excluded the unmarried women without legal recourse, reinforcing patriarchal moral judgement and suppressing the reproductive autonomy of unmarried women.

 Case Law – Z v. State of Bihar, (2018) 11 SCC 572.[7]

 In the above case a destitute unmarried woman aged 35yrs, a rape victim faced a legal and procedural hurdles to access abortion. The courts intervention highlighted the failure of the act to accommodate the realities of the unmarried women and victims of sexual violence.

• Over medicalization.

The decision whether to keep or terminate pregnancy rested with the doctors, not the women and hence making the act more doctor centric. The act required the opinion of one registered medical practitioner to terminate the pregnancy of upto 12 weeks and two practitioners for abortion between 12-20 weeks, somewhere again questioning women’s reproductive autonomy and her decision

 Case Law – Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.[8]

In the mentioned case, an orphan woman of the age 19-20 years with mental retardation was found pregnant while staying in welfare institution run by the government. The respondent administration approached the High Court seeking permission to terminate her pregnancy. The High Court called two expert committees to examine the committees advised to terminate the pregnancy but the High Court denied on helding basis of Article 21, women’s reproductive choices as fundamental right. However, the MTP Act still subordinate this right to medical opinion, creating a contradiction between constitutional interpretation and statutory law.

• Lack of access to the safe abortion facility in underdeveloped and unserved areas.

Many a times a good healthcare services are not accessible in the ruler areas, like shortage of proper healthcare infrastructure, lack experienced medical practitioners etc. In such situations nearly 50 percent of the abortions are performed in the unfavorable manner.

All the above-mentioned criticisms and loopholes in the Medical Termination of Pregnancy (MTP) Act, 1971 along with the judicial decisions demanded the essential amendments in the act as for women the pregnancy is not merely just a medical condition but it’s a matter of one’s rights over her body, honor and dignity. 

Medical Termination of Pregnancy (Amendment) Act, 2021

The Medical Termination of Pregnancy (Amendment) Act, 2021, came into existence on 24^th September 2021, this act marked a significance milestone in evolving the framework of the existing reproductive and the abortion laws. This amendment substantially aimed to address the limitations of the 1971 Act, particularly talking about the permissible gestation period for termination of the pregnancy, inclusivity and the outdated assumptions about martial status and reproductive choices.

Key Features of The MTP (Amendment) Act, 2021[9]

Extended Gestational Period

This was the one of the most significant changes introduced by the Amendment, extending the upper limit for termination of the pregnancy from 20 to 24 weeks. However, this change implies to some specific category of the women which include-

• Survivor of the sexual assault, rape or incest.
• Minors- In case of minors the pregnancy can be terminated only by receiving the consent by the guardians in written.
• Women whose martial status changes during pregnancy (widow or divorced)
• Women with physical disabilities.
• Women with fetal anomalies.

Although this increase in the gestation period seems a perfect solution but it still not included all women’s in a scope as the increased gestational period of 24 weeks is only for the women’s suffering from the above-mentioned conditions and thus creating as two tire system.

Inclusion of Unmarried Women’s[10]

This Amendment removed the discriminatory language of the MTP Act 1971, which limited the abortion due to the failure of the contraceptive method only to a ‘married woman’, now the provision refers to “any women or her partner”, thereby recognizing the reproductive autonomy of the unmarried women. This change was later reinforced by the Supreme Court in X v. Union of India (2022) which held that martial status should not affect a women’s access to the abortion rights under the law.

Formation of the Medical Board

This Amendment mandated the constitution of the Medical Board in every state or union territory for the cases involving termination beyond 24 weeks especially in the situations involving substantial fetal abnormalities. The Amendment prescribed that every medical board must consist

  (a) Gynecologist.

  (b) A Pediatrician

  (c) A Radiologist or Sonologist

  (d) And other specialists prescribed by the state governments.

 Confidentiality[11]

This Amendment introduced the insertion of the Section 5A which talks about the protection of privacy of women wherein no registered medical practitioner is allowed to reveal the identity of the women whose pregnancy is been terminated under this act except the person authorized by any law for the time in being force. And whoever violates the section 5A shall be punishable with the imprisonment of upto 1 year or with fine or both. This section protects women from social stigma, particularity in case of rape or extra marital pregnancies.

Landmark Judgement

 The Supreme Court’s ruling in X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi [12](also known as X v. Union of India) marked a significant turning point in India’s reproductive rights jurisprudence. In this instance, an unmarried woman petitioned the Delhi High Court to end her 22-week pregnancy. The MTP Act, as amended in 2021, only permitted abortions up to 24 weeks for certain types of women and did not specifically include unmarried women, the High Court ruled, rejecting her request. The Supreme Court bench of three judges Justices D. Y. Chandrachud, A. S. Bopanna, and J. B. Pardiwala overturned this interpretation, concluding that marital status is not a legitimate Significant milestone in India’s reproductive rights jurisprudence came with the Supreme Court’s judgment maintaining that a woman’s marital status is inadmissible as a reason for refusing an abortion. The Court underlined that unmarried relationships must be included in the broad interpretation of “woman and her partner.” Additionally, it reaffirmed Article 21’s constitutional protection of reproductive autonomy, which links it to personal liberty, bodily integrity, and dignity. The ruling acknowledged that a woman’s right to equality and life under Articles 14 and 15 is violated when she is forced to carry an undesired pregnancy, and that the law needs to change to reflect modern social realities. In addition to providing the petitioner with relief, this decision signaled a change in India’s legal framework from conditional to rights-based abortion

 Legal and Judicial Developments After 2023

Courts throughout India have remained crucial in interpreting and extending reproductive rights since the ruling in X v. Union of India. High courts have heard cases pertaining to fetal abnormalities, trauma-related late reporting, and practical problems with Medical Board operations. In 2023, for example, the Bombay High Court acknowledged the psychological and physical toll on the woman and permitted a termination at 28 weeks because of severe fetal abnormalities. In a similar vein, the Madhya Pradesh High Court allowed a minor rape survivor to have an abortion after 24 weeks. There are still discrepancies, though, as some courts have rejected comparable requests, citing strict category interpretation or Medical Board delays. These cases show that judges are becoming more sympathetic to women’s rights, but they also highlight the practical limitations in implementing the law uniformly.

A comparative viewpoint

Even with the 2021 amendment, India’s abortion laws are still doctor-centric and conditional. Canada[13], on the other hand, treats abortion as a medical issue and has no restrictions on gestational age. Abortion on demand is legal in South Africa[14] up to 12 weeks and, in more general situations, up to 20 weeks.

 The World Health Organization (WHO)[15], which contends that third-party authorizations and gestational limits limit access and compromise autonomy, suggests doing away with them. India’s legal system still exhibits moral paternalism and a lack of faith in women’s ability to make decisions when compared to these international norms.

 Implementation challenges

A number of structural and social issues persist despite progressive amendments and rulings.

• Access to safe abortion is hampered in rural areas by a shortage of qualified medical professionals.
• Legal gestational limits are crossed when Medical Boards are not formed in a timely manner.
• Women, particularly those who are young or single, are deterred from getting timely assistance by stigma and ignorance.
• Public hospitals continue to have infrastructure deficiencies, particularly with regard to second-trimester terminations.
• Healthcare providers become confused as a result of legal uncertainty brought on by varying court interpretations.

 Ideas and the Way Ahead

1. Acknowledge abortion as a fundamental right based on individual autonomy and choice, transcending medical exceptions.
2. Modify the MTP Act to eliminate the requirement for a Medical Board or to make it optional with stringent due dates.
3. To guarantee the availability of qualified staff and equipment, public health infrastructure should be improved, particularly in tier-2 cities and rural areas.
4. Develop awareness campaigns to inform teenagers and women about their legal rights and reproductive options.
5. To guarantee consistent application of abortion rights, standardize medical and legal procedures among states.

Conclusion

Reproductive rights are now recognized as essential to gender equality, dignity, and liberty in India, thanks to the MTP Amendment Act of 2021 and the Supreme Court’s decision in X v. Union of India. But the promise of autonomy is undermined by social stigma, restricted access, and a persistent dependence on outside approvals. Indeed.

References

[1] The Medical Termination of Pregnancy Act, No. 34 of 1971 (India).

[2] Shweta Rana Chauhan, Induced Abortion in India, Uttarakhand Jud. & Legal Rev. 94 (n.d.).

[3] The Medical Termination of Pregnancy Act, No. 34 of 1971, § 3 (India).

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Z v. State of Bihar, (2018) 11 S.C.C. (India).

[8] Suchita Srivastava v. Chandigarh Administration, (2009) 9 S.C.C. 1 (India).

[9] The Medical Termination of Pregnancy Act, No. 34 of 1971, §§ 3 (India), as amended by The Medical Termination of Pregnancy (Amendment) Act, 2021.

[10] The Medical Termination of Pregnancy Act, No. 34 of 1971, §§ 3 (India), as amended by The Medical Termination of Pregnancy (Amendment) Act, 2021.

[11] The Medical Termination of Pregnancy Act, No. 34 of 1971, §§ 5A (India), as amended by The Medical Termination of Pregnancy (Amendment) Act, 2021.

[12] X v. Principal Sec’y, Health & Family Welfare Dep’t, Gov’t of NCT of Delhi, 2022 SCC OnLine SC 1321 (India).

[13] Abortion in Canada, GOV’T OF CAN., https://www.canada.ca/en/public-health/services/sexual-health/abortion-canada.html (last visited (7August 9, 2025)).

[14] Abortion in South Africa, WIKIPEDIA, https://en.wikipedia.org/wiki/Abortion_in_South_Africa (last visited [9August2025]).

[15] Abortion, WORLD HEALTH ORG., https://www.who.int/news-room/fact-sheets/detail/abortion (last visited [9 August 2025]).